Identifying Wrongful Dismissal & Contacting an Employment Lawyer in Langley
What is Wrongful Dismissal?
Wrongful dismissal occurs when an employee's contract of employment has been terminated by the employer and breaches one or more terms of the contract of employment, or a statute provision in employment law.
Wrongful dismissal varies depending on the terms of the employment contract, the circumstances leading to the dismissal and the applications of law. B.C. law does not remove an employer's right to terminate an employee for just cause. However, the law requires that employees who are terminated without just cause receive written notice or compensation based on length of service. An employer that fails to comply with the law may be determined guilty of "wrongful dismissal".
What is the Contract?
Every individual who is hired to provide services has a contract of employment with the employer. The contract may not be in writing, however the company or human resources department will have advertised or spoken to you detailing the expectations required of a potential employee and there may be many implied terms that have been established in case law. Terms of a written contract may include obligations and rights outlined in an employee handbook.
Employment Standards Act
If you believe you have been wrongfully dismissed you may file a complaint under the BC Employment Standards Act.
The Act sets the minimum standard which an employee who is terminated can expect, but wrongful dismissal through the courts is different from a formal complaint made to the Employment Standards Branch under the Act. Those who wish to consider an action for wrongful dismissal should seek legal advice from Langley lawyers. The Employment Standards Branch does not provide legal advice.
Constructive Dismissal is Wrongful Dismissal
Constructive Dismissal describes situations where the employer has failed to comply with the contract of employment in a major respect or has unilaterally changed the terms of employment. Constructive dismissal occurs when an employee resigns as a result of the employer creating an intolerable or hostile work environment. When resignation is not truly voluntary it is considered a termination.
For federally regulated employees, a complaint must be filed with the Ministry of Labour in accordance with Canada Labour Code within 90 days if you believe you have been constructively dismissed. An experienced labour lawyer or employment lawyer can advise you and explain the various steps required to give legal notice to the employer.
Wrongful Dismissal - Employee Obligations and Cause
A decision of the BC Court of Appeal in Van den Boogaard v. Vancouver Pile Driving Ltd., 2014 BCCA 168 confirms the onus is also on the employee to abide by the written and implied terms of the employer contract.
Mr. Van den Boogaard's employment was terminated without cause on February 13, 2013. He received four weeks' base salary in lieu of notice, but sued for more. Mr. Van den Boogaard admitted using the company cell phone to buy illegal drugs from an employee under his direct supervision and the possibility he consumed illegal drugs with the employee. The original trial judge ruled:
[7] The courts have held that just cause is conduct which, in all the circumstances of the case, is seriously incompatible with the employee's duties; it is conduct which goes to the root of the contract and fundamentally strikes at the employment relationship
Mr. Van den Boogaard appealed the decision supporting the employer's right to terminate arguing that the majority of his misconduct was discovered after his dismissal. Mr. Van den Boogard lost his appeal because the employer's right to dismiss was considered justified.
Contact Milne Selkirk - Employment Lawyers in Langley & New Westminster
Any situation involving wrongful dismissal requires expert legal advice. If you feel you have been wrongfully dismissed, you should consult with an experienced employment lawyer in Langley to determine your rights and obligations under the law. Contact us at Milne Selkirk Lawyers at 604-882-5015.